Bush Writes Off Congress, Takes Reins in War Law: Some question the constitutionality
of the president's decision to fight terrorism on U.S. soil his way,
without lawmakers' approval
"On the question of presidential authority, the
Republicans' favorite role model is Democratic
President Franklin D. Roosevelt. During World
War II, Roosevelt ordered the detention of
Japanese Americans on the West Coast and a
secret military trial for eight Nazi saboteurs who
had landed on the Atlantic beaches.
The wartime experience of FDR's successor,
however, and the legal precedent it set for a
foreign-domestic delineation of presidential power,
is often forgotten."
December 10, 2001
E-mail story
By DAVID G. SAVAGE, TIMES STAFF WRITER
Los Angeles Times
WASHINGTON -- The message from the Senate
Democrats to the Bush White House last week
was: Let's be partners in the war against terrorism.
"That's how the founders and our Constitution
intended it. Under our system, none of us has a
monopoly on authority," Judiciary Committee
Chairman Patrick J. Leahy (D-Vt.) told Atty. Gen.
John Ashcroft.
The American people will have greater confidence
if the rules for this new war are "undertaken by
partners in our country's effort against a common
and terrible enemy," said Leahy, the Democrats'
point man. The Bush team responded with a clear
but polite "No, thank you."
"The constitutional founders didn't expect us to
have a war conducted by committee," Ashcroft told
his former Judiciary Committee colleagues. "The
Constitution vests the president with the
extraordinary and sole authority, as commander in
chief, to lead our nation in times of war."
The back-and-forth exchange at a committee
hearing Thursday illustrated the growing power
struggle playing out in Washington over a war
whose boundaries are yet to be drawn.
No one has questioned the president's authority to
send U.S. troops into battle in Afghanistan. But
controversy has arisen over a series of orders
issued by President Bush and his attorney general
that expand the government's power to fight
terrorism at home--from detaining hundreds of
foreigners to holding military tribunals to prosecute
noncitizens.
Truman's Action in 1952 Was Overruled
On the question of presidential authority, the
Republicans' favorite role model is Democratic
President Franklin D. Roosevelt. During World
War II, Roosevelt ordered the detention of
Japanese Americans on the West Coast and a
secret military trial for eight Nazi saboteurs who
had landed on the Atlantic beaches.
The wartime experience of FDR's successor,
however, and the legal precedent it set for a
foreign-domestic delineation of presidential power,
is often forgotten.
In 1952, with U.S. troops fighting in Korea,
President Harry S. Truman seized control of the
nation's steel mills when unions went on strike and
ordered military troops to keep the mills operating.
The president cited his powers as commander in
chief, but the Supreme Court ruled he had gone too far.
Justice Robert H. Jackson, who had served under FDR, said the president's
wartime power is limited on the home front, especially when he acts on his
own. Truman had not asked for congressional approval before seizing the mills.
"We should not use this occasion to circumscribe, much less contract, the
lawful role of the President as Commander in Chief," Jackson wrote. "I should
indulge [him] the widest latitude . . . to command the [military], at least when
turned against the outside world for the security of our society. But when it is
turned inward, it should have no such indulgence. His command power is not
such an absolute, . . . but is subject to limitations consistent with a constitutional
Republic whose law and policy-making branch is a representative Congress."
Nevertheless, Bush and his advisors are determined to fight terrorism on their
own terms and without interference by Congress.
And so long as the public strongly supports the president's efforts, Congress is
unlikely to stand in the way, or even demand a voice in making policy. Concern
for civil liberties aside, the political risk of appearing to side with the terrorists
could be too high.
On Sept. 14, just three days after the terrorist attacks, Congress passed a
broadly worded resolution authorizing Bush to "use all necessary and
appropriate force" to retaliate and to "prevent any future acts" of international
terrorism.
Since then, the government has detained more than 1,200 suspects and refused
to say who they are and why they are being held. New rules allow federal
agents to listen in on some jailhouse conversations between these suspects and
their lawyers. Ashcroft has increased FBI surveillance of groups that might
have links to terrorists. And the White House has said it may use military
tribunals to prosecute some noncitizens charged with terrorism offenses.
Grudgingly, Ashcroft negotiated with Leahy to win congressional approval of
counter-terrorism legislation. But on other efforts--including the military
trials--the administration has said that it can proceed without the approval of
Congress.
"We're fighting a war," Bush said last week about the military tribunals. "I need
to have that extraordinary option at my fingertips."
The Senate Democrats say they can see a need for this "extraordinary option"
but do not see why it should not be established--and restricted--by law.
On Capitol Hill, this dispute is partisan and personal.
The Senate Judiciary Committee has been the scene of bitter battles between
liberals and conservatives and, as the GOP senator from Missouri, Ashcroft
was one of its most aggressively conservative members.
When Bush chose him as attorney general, all but one of Ashcroft's former
Democratic colleagues voted against him. Wisconsin's Sen. Russell D. Feingold
said he knew Ashcroft personally and did not think he would be the firebrand
that critics had conjured up.
Since Sept. 11, however, Feingold has emerged as Ashcroft's sharpest critic in
the Senate, and during Thursday's hearing, they engaged in several frosty
exchanges.
Ashcroft also has a testy relationship with Leahy. During the Clinton years,
Leahy chafed at the moves by Ashcroft and other conservative Republicans to
block the president's nominees to the federal courts. This year, the two have
switched sides, and Leahy and the Democrats are blocking a series of Bush
nominees.
Many Disapprove of Military Tribunals
In general, the senators have mastered the art of smiling through clenched teeth.
But on the historic and controversial questions surrounding the nation's
response to the Sept. 11 attacks, Bush administration officials have generated
animosity by making clear that they are not interested in collaborating with
Congress.
White House lawyers have been determined to assert the president's legal
power. They wrote the Nov. 13 order authorizing military trials and gave it an
unusually broad reach.
It allows the president to detain and try in military court noncitizens if they have
"engaged in, aided or abetted, or conspired to commit" acts of terrorism. The
order also appeared to close the courthouse door to any appeals. "Military
tribunals shall have exclusive jurisdiction" over these individuals, and they may
not "seek any remedy or maintain any proceeding . . . in any court of the United
States."
More recently, Ashcroft and other administration officials have said that they
plan to use military trials for "war crimes" only, and probably only for terrorists
captured abroad.
During Thursday's hearing, Leahy announced that he had drafted legislation to
allow limited use of the military trials. Sens. Dianne Feinstein (D-Calif.) and
Charles E. Schumer (D-N.Y.) also said they were interested in pressing a bill
that would authorize the military trials.
"We should pass an authorizing resolution that really gives you, as the executive
branch, the authority to do what you need and also states some things like the
standard of proof, like whether it's open or partially closed [and] the right to
counsel," Feinstein said.
But the administration's lawyers said privately that they were not interested in
help from the Democrats.
"They have decided they are not going to stand in the road and block the way"
on tribunals, but "now they want to get in the front seat and drive," one
administration official said after the hearing.
Dispute Over Power in Wartime Not New
This clash also reflects a profound and recurring constitutional dispute over
who has the power to set the rules in wartime.
The Constitution seems to give authority to Congress. It says, "Congress shall
have the power to declare war . . . and to make rules concerning captures on
land and water." Congress also has the power "to define and punish . . .
offenses against the law of nations . . . [and] to constitute tribunals inferior to
the United States."
In contrast to these broad rule-making powers of Congress, the president is
described as the executive who carries out the rules. "The President shall be the
commander in chief of the Army and Navy," the Constitution says, and "he shall
take care that the laws be faithfully executed."
But over two centuries of American history, the balance of power has shifted
toward the president. After World War II and the advent of nuclear weapons,
it was commonly said that the president needed the power to go to war
instantly, without waiting for congressional approval.
And, despite much debate and hand wringing, Congress has not moved
aggressively to assert its own authority.
This fall, when the White House took up the idea of military trials, the president
and his advisors did not even bother to tell members of Congress, let alone ask
for their approval or input.
In this instance, the president's conservative lawyers, who usually are devoted
to the Constitution's "original meaning," are believers in the evolving
Constitution. Regardless of what was originally intended, they say the president
has the "sole authority" to lead in wartime, as Ashcroft put it.
Siding with the White House, Senate Republicans say they see no need for
legislation.
"We're at war," Sen. Orrin G. Hatch (R-Utah) advised his Democratic
colleagues Thursday. "I would hope that in this time of crisis we would all
check our egos."
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